Court File and Parties

COURT FILE NO.: F312/17 DATE: July 25, 2019 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Pamela Clare Hutchinson, applicant AND: Kaitlyn Ann Ross and David Walter Donald Ross, respondents

BEFORE: TOBIN J.

COUNSEL: Robert Haas for Pamela Clare Hutchinson Hamoody Hassan for David Walter Donald Ross Kaitlyn Ann Ross in person

HEARD: written submissions filed

Endorsement on Costs

1On June 19, 2019, following a 19 day trial, my reasons for judgment were released, in which the applicant, the maternal grandmother, was granted custody of her grandson. The respondent father and the respondent mother were granted access.

2The maternal grandmother seeks her costs in the amount of $120,515.85. The respondent father asks for costs of $100,000 in his favour or, in the alternative, that there be no order for costs. The respondent mother asks that there be no costs awarded against her.

Legal Considerations

3Modern family cost rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under r. 2(2) of the Family Law Rules, O. Reg. 114/99: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

4Subrule 24(1) creates a presumption of costs in favour of a successful party. In determining success, the court may consider the relief claimed by a party in their pleadings or the relief claimed at trial if different from the pleadings: Johnstone v. Locke, 2012 ONSC 1717. Success can also be considered in relation to how the order or eventual result compares to offers to settle that were made: Jackson v. Mayerle, 2016 ONSC 1556.

5The presumption that a successful party is entitled to costs must be considered in conjunction with subrule 24(6). This subrule provides that where success in a step in a case is divided, the court may exercise its discretion to order and apportion costs as appropriate. In Arthur v. Arthur, 2019 ONSC 938, Chappel J. considered the issue of degree of success, at para. 14, as follows:

... The determination of whether success was truly "divided" does not simply involve adding up the number of issues and running a mathematical tally of which party won more of them (Brennan v. Brennan, 2002 CarswellOnt 4152 (S.C.J.)). Rather, it requires a contextual analysis that takes into consideration the importance of the issues that were litigated and the amount of time and expense that were devoted to the issues which required adjudication (Jackson v. Mayerle, 2016 ONSC 1556 (S.C.J.); Slongo v. Slongo, 2017 ONCA 687 (C.A.)) Where the court concludes that success was in fact divided, it may award costs to the party who was more successful on an overall global basis or on the primary issue, subject to adjustments that it considers appropriate having regard for the lack of success on secondary issues and any other factors relating to the litigation history of the case (Gomez-Pound v. Pound, 2009 ONSC 5400 (O.C.J.); Boland v. Boland, 2012 ONCJ 239, [2012] O.J. No. 1830 (O.C.J.)).

6Rule 24 of the Family Law Rules sets out the framework for awarding costs in family law cases decided in this court. Subrule 24(12) sets out factors that are relevant to setting the amount of costs. This subrule is formulated as follows:

24(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

7In Beaver v. Hill, 2018 ONCA 840, at para. 12, the court stated with respect to subrule 24(12) that:

12. … proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.

Analysis

Success

8The maternal grandmother argued that she was successful in that she asked for custody of the child in her pleadings and at trial. That was the order that was granted. In his pleadings and at the close of the trial, the father sought custody of the child. The maternal grandmother was successful on this most significant issue.

9The maternal grandmother sought a schedule of gradually increasing weekend access culminating in him having access every third weekend. At the opening of trial, it was the father’s position that he have gradually increasing weekend access expanding to alternate weekends and, within nine months after starting access, there be a review of the custody and access provisions. At the close of trial, the father asked for an order for custody and that the child be placed in his care. He alerted the court to his change in position just prior to the opening of his case. The transition period ordered was of shorter duration than that sought by the maternal grandmother. However, no review order was made.

10The maternal grandmother wanted sole decision-making responsibility for the child, while the father wanted joint decision-making with the maternal grandmother and the mother. The order provided that the maternal grandmother have decision-making authority after consulting with the father and mother.

11On the issue of the amount of time the child is to spend with the father, the order granted more time than sought by the maternal grandmother but less time than sought by the father.

12The father argued that on the issue of his access, the order made granted the majority of what he sought. With respect, I do not agree that the order made with respect to access granted him the majority of what he sought. The access order is for an indefinite term, not reviewable after nine months. While the weekend access ordered was a little more than that proposed by the maternal grandmother, the other access provisions ordered were similar to what all parties proposed. Compared to what the father sought, his success was minimal.

13Considering the foregoing, I find the maternal grandmother was substantially more successful than the father:

• she was granted custody
• she was granted final decision-making authority
• a review order was not made
• there was divided success on access issues

Offers to Settle

14Both the maternal grandmother and father exchanged offers to settle: three by the maternal grandmother and one by the father. The order made was not as favourable as or more favourable than any of the offers exchanged. I did consider these offers to the extent that they demonstrated genuine attempts to resolve this case from the perspective of the party making the offer.

Rule 24(12) factors

15This case was of considerable importance to all the parties.

16A considerable amount of evidence was tendered over this 19 day trial. I agree with the maternal grandmother that the facts were complex in that they raised credibility issues. They also laid bare the nature of the relationship between all three parties and the child.

17The legal issues were not unusual or unduly complex. They all centered on what was in the best interests of the child having regard to his special needs and relationships with all.

18I find no fault in any party’s behaviour in the conduct of this case.

19The maternal grandmother argued that the following positions taken by the father were unreasonable:

• his claim for custody and to change the child’s school
• his unwillingness to pursue therapy in an earnest manner
• requesting a review order
• changing his position mid-trial to claim custody immediately

20I do not find that this behaviour was unreasonable in the context of subrule 24(12). While he advanced difficult positions – a change in custody of this young child after he had been in the maternal grandmother’s care for over two years – I accept that, from his perspective, the claim had to be made by him. I also consider that he made an offer to settle mostly consistent with the positions he took at the start of the trial. He explained why he could not accept the maternal grandmother’s offer. The issues were about decision-making and parenting time. I accept that both parties offered some compromises in their respective offers: see subrule 24(5).

21The total docketed lawyer time incurred in respect of the father was 319 hours, plus 103.9 hours for clerks. This does not include time expended on this case by the father’s previous two counsel. The total docketed lawyer time claimed on behalf of the maternal grandmother was 301.3 hours.

22As the time spent on this case by the maternal grandmother’s counsel was less than that spent by the father and the case consumed 19 days, I find that the time spent on behalf of the maternal grandmother was reasonable and proportionate to the conduct of the case.

23The legal fees, including the number of lawyers and their rates, were reasonable having regard to the time spent. But I question whether the issues required 19 days of trial for the individuals who, on the evidence, have limited means. The full indemnity calculation of the maternal grandmother is $150,644.81. The full indemnity calculation of the father is $187,566.44. These amounts inform the reasonable expectations the parties had to their exposure to an adverse costs award: see Murphy v. Murphy, 2014 ONSC 2624 at para 23.

24I also consider the father’s ability to pay costs. His financial circumstances, disclosed in the context of the child support order made, are not to be used as a shield against his liability for costs but may be considered regarding quantum.

Conclusion

25The maternal grandmother was substantially successful at trial. She was completely successful on the most important issue of custody. She is entitled to her costs.

26Taking all the circumstances of this litigation into account, I award the maternal grandmother costs against the father $85,000 inclusive of disbursements and applicable taxes.

27I make no order for costs for or against the mother.